NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. IN THE MATTER OF (2013)

Defendant A.M. appeals from the October 19, 2007 fact-finding of the Family Part concluding that she abandoned and neglected her daughter, S.S., within the meaning of N.J.S.A. 9:6–8.21(c).  Defendant argues this finding should be vacated as not supported by a preponderance of the evidence and that her name be removed from the Central Registry, N.J.S.A. 9:6–8.11. After reviewing the record in light of the contentions raised on appeal, we affirm.

Defendant A.M. is the biological mother of S.S., born July 11, 1994.   S.S.'s biological father is believed to be somewhere in Florida undergoing substance abuse treatment and has not been involved with S.S. for several years.

S.S., who was thirteen years old at the time of the fact-finding hearing, has a history of mental health issues and the Division of Youth & Family Services (Division) ¹ has been involved with this family since April 1, 2003.²  Between then and May 2007, the Division received numerous referrals regarding abuse and neglect of S.S., all of which were deemed unfounded.

The events surrounding the incident underlying the court's finding of neglect actually began on May 11, 2007, when the Division received a referral alleging that defendant had refused to pick up S.S. upon her impending discharge from Saint Claire's Hospital.   S.S. had been admitted on April 19, 2007, to the hospital's Children's Crisis Intervention Service (CCIS), after overdosing on over-the-counter medications and spraying pepper spray in her mother's bedroom.   S.S. was medically cleared for discharge on May 9, 2007, but defendant refused to retrieve her as she believed S.S. would decompensate at home.   The hospital recommended intensive in-home therapy but defendant refused, instead requesting S.S. be placed in in-patient treatment.   Defendant initially agreed to allow S.S. to return home that weekend on a trial period, but then later refused the weekend visit.

As of May 14, 2007, five days after S.S. was cleared for discharge, defendant still had not retrieved her daughter.   At that time, defendant informed the Division caseworker that she was still unwilling to take S.S. home because S.S. suffered from mental health, as opposed to simply behavioral, problems and was not ready for discharge.   Defendant disagreed with the hospital's recommendation of intensive in-home therapy, believing instead that S.S. would be better served at an in-patient facility.   The Division caseworker informed defendant of the availability of other options in the event assistance was needed and, ultimately, defendant was persuaded to take S.S. home that same day.

Two days later, however, on May 16, 2007, the Division received another referral, this time from Family Intervention Services (FIS), alleging that defendant left S.S. at the hospital where she had taken her daughter for psychological testing.   At 9:00 a.m. that morning, defendant brought S.S. to the Newton Memorial Hospital for a psychological screening, following an incident the previous evening wherein S.S. threatened to run away with her boyfriend to Mexico and to kill defendant if she had to return home with her.   Based on the psychological assessment, S.S. did not meet hospital criteria for admission as it was determined that S.S. was not a harm to herself or others.   The child was cleared to leave and the matter was referred to an outside resource for further follow-up.   Once again, however, defendant refused to take S.S. home, insisting instead that she had done everything she could for S.S. and that she loved her daughter enough to let her go.   At around noontime, defendant left the hospital without telling S.S., leaving her daughter there with an FIS worker, who then called in the referral.   Hospital workers called the Division requesting placement of S.S. because “her mother abandoned her, she doesn't want her[,] and refuses to take her home.”

Division caseworkers contacted defendant at her workplace but she refused to speak to them.   The Division then executed a DODD removal ³ of S.S. and placed her in a Division-approved foster home.   That evening, Division caseworkers met with defendant, who signed all the necessary paperwork to effectuate the removal.   Ultimately, the Division substantiated defendant for neglect of S.S.

On May 18, 2007, the Family Part judge found that it “would be contrary to the welfare of the child to be returned to her home[,]” and that removal was required due to the “imminent danger to the child's safety because the child was discharged from the hospital and the mother is not taking custody at this time.” ⁴

At the July 18, 2007 return on the order to show cause hearing, the judge maintained S.S. under the custody, care and supervision of the Division, with the goal of reunification.   Defendant was ordered to undergo a psychological evaluation and to comply with service recommendations.   She was also afforded weekly supervised visitation with S.S., who was living in a treatment center at the time and did not want to live with her mother, but did desire visits with her.

A fact-finding was held on October 19, 2007, at the conclusion of which the judge found that defendant had abandoned and neglected S.S. The judge reasoned:

I find by a preponderance of the evidence that [S.S.] is a neglected child.   [W]hat occurred on May 16th was that the child was in the hospital, and the hospital wanted to discharge her, and the mother refused to take her.   She abandoned her, she left her there.

We have heard that the implication was that she didn't think that it was appropriate for the child to leave the hospital, but the hospital was not keeping her.   The child was being sent off, and the mother was not taking her.

It's of major concern to the Court that [defendant] just was unwilling to follow the directions of the hospital and find an alternative method of helping the child, in fact, if she truly believed the child needed help.   But just leaving her there does not fulfill her parental obligation.

I want to step back and say that I just heard in the past few minutes that apparently ․ in the three days before the [April 19, 2007] mixed pill incident that we have heard about, [defendant] indicated that the child was acting very erratically, she had stolen money, she was staying out, was not showing up where she needed to be, she sprayed pepper spray all over the mom's bedroom, yet the mother left the child home alone when she went to school that day, and that was one of the incidents that caused the hospitalization in April.

In terms of the case law, a guardian or parent fails to exercise a minimum degree of care for ․ the purposes of the Child Neglect Statute when the parent or guardian is aware of the dangers inherent in a situation and fails adequately to supervise a child or recklessly creates a risk of serious injury to the child.

Refusing to take a child away from the hospital when the hospital was discharging her could not more clearly fall under that definition.   The incident that I just described that led to the hospitalization a month earlier also smacks of the neglect that is discussed there.

It appears from the testimony and what I have gleaned from the exhibits that I have seen, that [S.S.] does have issues, they need to be dealt with, but that doesn't justify a parent walking off and saying I'm not taking her.   So I find that for purposes of the statute by a preponderance of the evidence that [S.S.] is a neglected child, and that's my determination for purposes of this hearing.

The judge continued S.S. under the custody, care and supervision of the Division, where she remained, by virtue of subsequent court orders, until she reached eighteen years of age on July 11, 2012, when she declined further Division involvement.   On September 5, 2012, the court entered an order terminating litigation.

This appeals follows, in which defendant raises the following issues:

I.  AS THE FINDING OF NEGLECT MADE BY JUDGE GOODZEIT IN THIS CASE WAS NOT SUPPORTED BY LEGALLY SUFFICIENT FACTS IT SHOULD BE VACATED AND THE DEFENDANT'S NAME REMOVED FROM THE CENTRAL REGISTRY.

A. The Finding that A.M. Failed to Exercise the Minimum Degree of Care Required by N.J.S.A. 9:6–8.21(c)(4)(b) Was Error.

B. As Defendant's Conduct Did Not Constitute Willful Abandonment, the Finding of Neglect for Willfully Abandoning her Child Must Be Reversed.

II. A FINDING OF NEGLECT IS NOT A LEGAL PREREQUISITE TO THE PROVISION OF SERVICES AND TO THE EXTENT THAT FINDING WAS MADE IN THIS CASE TO ENABLE THE CONTINUATION OF SUCH SERVICES, THE DECISION HEREIN IS FATALLY FLAWED AND MUST BE REVERSED.

At a fact-finding hearing, the judge must determine whether a child has been abused or neglected.  N.J.S.A. 9:6–8.44. Our scope of review is limited.   “The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.”  Cesare v. Cesare, 154 N.J. 394, 411–12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).   Deference is appropriate because trial judges have the opportunity to see and hear the witnesses and evaluate the credibility and weight to be afforded their testimony.  N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 259 (App.Div.2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).   Deference to family court fact-finding is particularly appropriate because of the family court's special jurisdiction and expertise in family matters.  Cesare, supra, 154 N.J. at 411–13.   We do not interfere unless the trial judge's findings are “so wide of the mark that the judge was clearly mistaken.”   N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.T., 269 N.J.Super. 172, 188–89 (App.Div.(1993)).

Abuse cases are fact sensitive and are examined on a case-by-case basis.   N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011).   The standard for a finding of abuse or neglect is by a preponderance of the evidence.  N.J.S.A. 9:6–8.46(b)(1).

N.J.S.A. 9:6–8.21(c)(4) states that an “[a]bused or neglected child” is “a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian ․ to exercise a minimum degree of care[.]”  That phrase “refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.”  G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999).   A parent or guardian “fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child.”  Id. at 181.

Under N.J.S.A. 9:6–8.21(c)(5), an “[a]bused or neglected child” is also “a child who has been willfully abandoned by his parent or guardian [.]”  Abandonment is elsewhere defined:

Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child:  (a) willfully forsaking a child;  (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection;  (c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control.

[N.J.S.A. 9:6–1.]

“Abandonment requires a finding that parents, although physically and financially able to care for their children, willfully forsook their parental responsibilities.   The concept of abandonment entails a willful surrender or intentional abdication of parental rights and duties.”  In re Guardianship of K.L.F., 129 N.J. 32, 39 (1992) (citations omitted).  “The word ‘willfully’ in the context of this statute means intentionally or purposely as distinguished from inadvertently or accidentally.”  State v. Burden, 126 N.J.Super. 424, 427 (App.Div.), certif. denied, 65 N.J. 282 (1974).

Here, the record contains substantial, credible evidence to support a finding of neglect under both N.J.S.A. 9:6–8.21(c)(4) and (5).   Not only did defendant fail to “exercise a minimum degree of care,” she clearly and explicitly refused to care for her child at all when, on May 16, 2007, she willfully left S.S. at the hospital shortly after delivering her there for a psychological assessment;  refused to take responsibility for the child and to take her home when S.S. was cleared for discharge;  and even declined to speak with the Division caseworker who later tried to contact her.   Defendant, in effect, “abandoned” her daughter, leaving her alone with the FIS worker and forcing the Division to assume care, custody and control of S.S. See N.J.S.A. 9:6–1.   The Family Part judge correctly found that a parent is not allowed to abandon a child merely because that child is difficult to control or has mental health issues, since neither circumstance mitigates the fundamental responsibility of the parent to provide care for her child.   But for the Division's intervention, defendant left S.S. without a safe and secure place to stay, thereby exposing the child to an actual and imminent risk of harm.   In essence, defendant “willfully forsook [her] parental responsibilities.”  In re Guardianship of K.L.F., supra, 129 N.J. at 39.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that defendant's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion.  R. 2:11–3(e)(1)(E).

Affirmed.

FOOTNOTES

FN1. On June 29, 2012, the Governor signed into law A–3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency.  L. 2012, c. 16, eff.   June 29, 2012..  FN1. On June 29, 2012, the Governor signed into law A–3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency.  L. 2012, c. 16, eff.   June 29, 2012.

FN2. On September 20, 2005, S.S. was evaluated at Saint Claire's Hospital because of a possible suicide attempt.   S.S. was experiencing auditory hallucinations that were telling her to commit suicide.   S.S. used a knife to cut herself that morning.   She was medically cleared for psychiatric hospitalization with a diagnosis of major depression with psychotic features.On April 6, 2006, a police officer from the Byram Police Department notified the Division that S.S. made suicidal comments while in school.   School officials told defendant to take S.S. to the hospital for evaluation.   Defendant took S.S. to Newton Memorial Hospital, but after being informed the wait was over thirty minutes, defendant left with S.S. After meeting with a Division caseworker, defendant took S.S. back to the hospital for an evaluation.   S.S. admitted to having suicidal ideations..  FN2. On September 20, 2005, S.S. was evaluated at Saint Claire's Hospital because of a possible suicide attempt.   S.S. was experiencing auditory hallucinations that were telling her to commit suicide.   S.S. used a knife to cut herself that morning.   She was medically cleared for psychiatric hospitalization with a diagnosis of major depression with psychotic features.On April 6, 2006, a police officer from the Byram Police Department notified the Division that S.S. made suicidal comments while in school.   School officials told defendant to take S.S. to the hospital for evaluation.   Defendant took S.S. to Newton Memorial Hospital, but after being informed the wait was over thirty minutes, defendant left with S.S. After meeting with a Division caseworker, defendant took S.S. back to the hospital for an evaluation.   S.S. admitted to having suicidal ideations.

FN3. A “Dodd removal” refers to an emergency removal of a child from the home without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6–8.21 to –8.82..  FN3. A “Dodd removal” refers to an emergency removal of a child from the home without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6–8.21 to –8.82.

FN4. On June 17, 2007, S.S's foster mother brought her to the emergency room because S.S. overdosed on her prescribed lithium pills.   S.S. was admitted to an adolescent psychiatric unit.   The treating physician diagnosed S.S. with bipolar disorder and post-traumatic stress disorder and recommended an intensive residential program.   When informed of the incident, defendant responded, “I was afraid of that.”   Defendant reiterated that S.S. should have remained at St. Claire's Hospital because she was not stable enough to return home..  FN4. On June 17, 2007, S.S's foster mother brought her to the emergency room because S.S. overdosed on her prescribed lithium pills.   S.S. was admitted to an adolescent psychiatric unit.   The treating physician diagnosed S.S. with bipolar disorder and post-traumatic stress disorder and recommended an intensive residential program.   When informed of the incident, defendant responded, “I was afraid of that.”   Defendant reiterated that S.S. should have remained at St. Claire's Hospital because she was not stable enough to return home.

PER CURIAM